ML20212N523
| ML20212N523 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/09/1987 |
| From: | Zeugin L HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2762 OL-3, NUDOCS 8703130060 | |
| Download: ML20212N523 (12) | |
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- LILCO, March 9,1987
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' 90CKTED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .,a .
117 IRR 11 P4:37 i Before the Commission QE E CQ,j
!!RANC i In the Matter of - )
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L7NG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
. . .. ) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S OPPOSITION TO INTERVENORS' MOTION TO ADMIT A NEW CONTENTION On February 25, 1987, Suffolk County, the State of New York and the Town of Southampton (Intervenors) filed a motion asking the Commission to admit a new con-tention concerning provisions in the Shoreham Nuclear Power Station Local Offsite Radiological Emergency Response Plan for medical services for " contaminated injured individuals."M Intervenors' motion is the latest episode in their continuing _ quest to have'an issue related to the GUARD decision admitted for litigation.E The motion 1/ LILCO agrees that the Commission has jurisdiction to consider the pending mo-tion. The two Licensing Boards that are now considering issues regarding emergency i planning for the Shoreham facility are each considering discrete issues that do not include the subject matter of the proffered contention. One Licensing Board is consid-ering issues arising from the February 13, 1986 Exercise of the Shoreham Emergency Plan. The other is resolving a small group of planning issues remanded by the ' Appeal Board in ALAB-832,23 NRC 135 (1986) (which was affirmed except for three issues still panding before the Commission in the Commission's Order of September 19,1986), and 3
. by the Commission in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13,24 NRC 22 (1986),
i 2/ . GUARD v. NRC, 753 F.2d 1144 (D.C. Cir.1985).
3/ Intervenors first sought to raise questions about LILCO's compliance with the
- . requirements of 10 C.F.R. S 50.47(b)(12) in the " Phase I" emergency planning proceed-l ings which included all onsite planning issues and any offsite issues that could then be b litigated. See Intervenors' Phase One Consolidated Emergency Planning Contentions, ;
- pp. 8-12 (Contention EP3) (Aug. 20,1982). On September 7,1982, the Licensing Board i (footnote continued) i 8703130060 870309 '
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- y - ~ should be denied because (1) it is premature, (2) it is premised on an incorrect legal standard, and (3) it falls to demonstrate that the standards for a late-file contention have been met.
I. INTERVENORS' MOTION IS PREMATURE Intervenors' motion to admit a new contention is based on the issuance of FEMA Guidance Memorandum MS-1, Medical Services, dated November 13,1986. This memo-randum was forwarded by the NRC's Office of Inspection and Enforcement to all nucle-ar power facilities on December 2,1986.
Guidance Memorandum MS-1, which was prepared as a result of a " Statement of 4
Policy" issued by the Commission on September 12, 1986, 51 Fed. Reg. 32,904 (Sept.17, -
1986), contains a number of planning standards for meeting 10 C.F.R. S 50.47(b)(12)
(footnote continued) admitted portions of Intervenors' proposed contention. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-82-75,16 NRC 986, 997-1001 (1982).
However, soon thereaf ter, the Licensing Board found Intervenors to be in default of a Board order and as a sanction, dismissed the " Phase I" emergency planning contentions, including the contention regarding LILCO's compliance with 10 C.F.R. S 50.47(b)(12).
- Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115,16 NRC 1923 (1982). I Following the D.C. Circuit's decision in GUARD v. NRC, Intervenors sought ad-1 mission of a new cpntention on LILCO's compliance with 10 C.F.R. S 50.47(b)(12). Mo-i tion of Seffolk County and New York State to Admit New Contention (Feb. 25, 1985).
L. The Licensing Board denied the motion. Memorandum and Order (Denying Suffolk g County's and New York State's Motion to Admit New Centention) (Aug. 21, 1985). In- q tervenors then sought review of that decision both from the Appeal Board and the ,
Commission. Both upheld the Licensing Board's decision. Long Island Lighting Co.
, (Shoreham Nuclear Power Station, Unit 1), ALAB-832,23 NRC 135,143 (1986); Commis-
' sion Order, Docket No. 50-322-OL-3 slip op. (Sept. 19, 1986).
Most recently, Intervenors sought to raise the issue of LILCO's compliance with L 10 C.F.R. S 50.47(b)(12) in the litigation involving the February 13,1986 Exercise of the
- Shoreham Plan. See Intervenors' Emergency Planning Contention Relating to the i February 13, 1986 Exerche, pp. 23-24 and 152-54 (Contentions EX 15.J and 48) (Aug.1, 1986). These proposed' contentions were denied admission by the Licensing Board.
Prehearing Conference Order, Docket No. 50-322-OL-5, slip o_p. at 11 and 28-29 (Oct. 3, 1986).
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. which requires that " arrangements are made for medical services for contaminated in-jured individuals." In a section entitled " Implementation", the Guidance Memorandum states that:
Plans for plants that do not have a full- power operating license should reflect the provisions of this GM within 9 months of the effective date of this GM.
Memorandum at 5. Since the Guidance Memorandum was sent to licensees on December 2,1986, this means that LILCO has until September 2,1987 to revise the Shoreham Emergency Plan to comply with the Guidance Memorandum's provision.E Until LILCO files its response to MS-1, the factual sufficiency of that revision is unknown. Hence, it is premature to admit a contention on those prospective revisions.
In its " Statement of Policy", the Commission implicitly anticipated motions like the present one when it stated:
$ Therefore, until appropriate detailed guidance consistent with this policy statment is issued and implemented, the Licensing Boards may continue to reasonably find that any hearing regarding compliance with 10 C.F.R. 50.47(b)(12) shall be lim-ited to issues which could have been heard before the Court's decision in GU A RD v. NRC.
51 Fed. Reg. 32,904, 32,906 (emphasis supplied). Since the detailed guidance is not re-quired to be implemented until September 2, the previous determination that LILCO had complied with the pre-GUARD planning requirements still stands and Intervenors' motion should be denied as premature.El i
f g Intervenors incorrectly assert on page 6 footnote 4 of their motion that LILCO must revise its Plan by August 2,1987.
1/ At several places in their motion, Intervenors urge the Commission to exercise its discretion and order LILCO to expedite the filing of its response to Guidance Memo-
- randum MS-1. See Motion at 6 n.4 and 8. These requests are unpersuasive. When FEMA formulated MS-1, it provided specific guidance on when implementation was necessary. Guidance Memorandum MS-1 at 5. Presumably, these deadlines were based on FEMA's expert judgment about the importance of the planning standards in MS-1 and the work necessary to comply with them. Accordingly, the Commission should defer to (footnote continued)
O
, II. INTERVENORS' MOTION IS PREMISED ON AN INAPPROPRIATE LEGAL STANDARD Intervenors have styled their motion as a motion to file a new contention and have then attempted to demonstrate compliance with the requirements of 10 C.F.R.
S 2.714(a)(1). In so doing, they have blithely assumed that the entire record in the Shoreham emergency planning proceeding remains open. That assumption is incorrect.
On February 25, 1985, Intervenors sought to file a late-filed contention on the arrangements for medical services for contaminated injured individuals. Motion of Suffolk County and New York State to Admit New Contention (Feb. 25, 1985). On August 21, 1985, the Licensing Board denied that motion. Mem'orandum and Order (Denying Suffolk County's and New York State's Motion to Admit New Contention)(Aug.
21,1985). . On August 29,1985, the Licensing Board closed the evidentiary record for the proceeding involving the Shoreham Emergency Plan. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 651 (1985) (" Partial Initial Decision").SI The Licensing Board later issued its decision in two Partial Initial
' footnote continued)
FEMA's expert judgment absent some compelling reason to the contrary. Intervenors have provided no such reason.
Intervenors referewe a recent Licensing Board decision in the San Onofre pro-ceeding, Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), slip 03. (Dec. 29,1986), as the sole basis for their request for expedition. See Motion at 6 n.4. That case is not dispositi'le in this proceeding. First, it was the Com-mission's decision in the San Onofre proceeding that the D.C. Circuit reviewed and re-manded in its GUARD decision. Thus, the issue of compliance with 10 C.F.R.
S 50.47(b)(12) remanded open in that proceeding and on September 12, 1986 the Com-mission remanded the issue to the Licensing Board so it could " initiate appropriate pro-ceedings." Second, because the San Onofre facility already has its operating license, it was not required to comply with Guidance Memorandum MS-1 until July 1988 - approx-imately 9 months af ter LILCO's response is due. See San Onofre, slip op. at 2. Thus, the Boa" in that proceeding sought to expedite the ultimate resolution of the open 11-censing asue by having the licensee file its response on a more expedited schedule.
Similar factual circumstances do not exist in this case.
s/ On January 28, 1985, the Licensing Board reopened this record to take evidence on a single issue relating to reception centers - an issue unrelated to issues raised by the GU ARD decision.
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Decisions. I_d. and Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
~ LBP-85-31, 22 NRC 410 (1985). In the Concluding Partial Initial Decision, the Board listed a number of " defects" in the Plan. However, these defects did not include ar-rangements for medical services for contaminated injured individuals. See 22 NRC at 429-31.
Intervenors sought review of numerous portions of these PartialInitial Decisions including the Licensing Board's order denying admission of their contention on LILCO's compliance with 10 C.F.R. S 50.47(b)(12). See Suffolk County, State of New York, and Town of Southampton Brief on Appeal of Licensing Board August 26, 1985 Concluding l Partial Initial Decision on Emergency Planning, pp. 65-68 (Nov. 6,1985). Specifically, Intervenors stated that "[t]he ASLB listed no defects regarding LILCO's compliance with 10 C.F.R. S 50.47 (b)(12) . . . Indicating the ASLB's apparent finding that LILCO
- complies with that regulation." Id. at 65. The Appeal Board rejected Intervenors' argu-ments and affirmed the Licensing Board's decision to deny admission to their conten-tion. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALB-832,23 NRC 135,143 (1986).
On April 15, 1986, Intervenors petitioned the Commission to review ALAB-832.
In their petition, Intervenors argued that "[a]bsent Commission review, ALB-832 will constitute the NRC's ' Final Decision' on the issues set forth in Attachment I." Suffolk l County, State of New York, and Town of Southampton Petition for Review of j
! ALAB-832, p. 4 (April 15.1986). Among the items listed in Attachment I was the entry l
l " Denial of admission of contention r;e LILCO's non-compliance with 10 C.F.R. S 50.47 (b)(12)." g, Att.1, p. 5. Thus, by Intervenors' own admission, the Commission's deci-sion on their petition for review of ALAB-832 would have closed the record on LILCO's l
compliance with 10 C.F.R. S 50.47(b)(12). On September 19, 1986, the Commission is-l l
j sued an order that granted review of ALAB-832 on three issues. Those issues did not i,
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. include ).ILCO's alleged non-compliance with the provisions of 10 C.F.R. S 50.47 (b)(12).
Accordt gly, resolution of that issue became final agency action. As a result, if Inter-venors wished to revisit the question of LILCO's compliance with 10 C.F.R.
S 50.47 b)(12), they should have filed a motion to reopen the record.II the legal standards governing a motion to reopen are significantly different and more s ringent than the standards for filing a late-filed contention. The criteria for re-
'openin.; are codified at 10 C.F.R. S 2.734. See 51 Fed. Reg. 19,535,19,539 (May 30, 4
1986). The three criteria that must be satisfied are:
- 1. The motion must be timely, except that an exception-ally grave issue may be considered in the discretion of
- the presiding officer even if untimely presented.
- 2. The motion must address a significant safety or envi-ronmental issue.
- 3. . The motion must demonstrate that a materially differ-ent result would be or would have been likely had the newly proffered evidence been considered originally.
Id. In addition, the motion must be accompanied by an affidavit. & Intervenors have
[ failed to meet any of these criteria, and therefore their motion should be denied out-i right.
Even if Intervenors had filed their motion under the proper legal theory, it is I doubtful they could have made the necessary showings. The issues raised by Interve-nors' proffered contention do not present significant safety issues nor do they plainly suggest that a materially different result would have been reached had the evidence been considered initially. Indeed, in its September 17 Statement of Policy the Commtssion stated:
I/ Interestingly, in filing the present motion to admit a new contention. Intervenors did not take the same legal tack as they did when they asked the Commission to allow further evidentiary hearings on the Red Cross's and congregate care centers' participa-tion in the Shoreham Emergency Plan. On November 10,1986, Intervenors filed a "Mo-tion to Reopen Record" on those issues with the Commission. Intervenors have made no attempt to explain why different legal standards apply to these issues, even though all of these issues were resolved when the Commission refused to review ALAB-832.
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Af ter reconsideration in light of the Guard decision, the Commission has concluded that some additional planned arrangements beyond the development of a list of treatment facilities are necessary to provide addi-tional assurance of effective management of emergen-cy medical services in the hours or days following a se-vere accident. However, the Commission continues to believe that the long-term treatment needs of exposed individuals can be adequately met on [an] ad hoc basis.
The minimally necessary requirements for the person that may be exposed need not be elaborate.
51 Fed. Reg. 32,905 (emphasis supplied).
IH. INTERVENORS HAVE FAILED TO DEMONSTRATE THAT THEIR CONTENTION MEETS THE STANDARDS FOR A LATE-FILED CONTENTION Even if Intervenors are correct in formulating their motion as a motion to admit a new contention, they have not demonstrated that a balancing of the five factors to be considered in accepting a late-filed contention, see 10 C.F.R. 5 2.714(a)(1), weighs in their favor.
First, Intervenors argue that good cause exists for their not having filed the pro-posed contention earlier. Motion at 7-8. As noted above, the present filing is not un-timely, but rather premature.
Second, Intervenors assert that only by admission of the proposed contention will their interests be protected. Motion at 9. In fact, Intervenors have another means of assuring that their interest - presumably the protection of the public health and safety - is met. Intervenors control health care facilities in the vicinity of the Shoreham plant. These facilities have the capability of treating contaminated injured individuals. If Intervenors' concern is that facilities are available for treating the gen-eral public or that the personnel in those facilities may lack adequate training in deal-ing with radiation exposure injuries, then the solution to those concerns rests in their own hands.
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v Third,.Intervenors contend that they can be expected to assist in developing a sound record. Motion at 9-10. LILCO does not agree. Past history suggests that Inter-
- venors will use the admission of their proposed contention as a further means of delay-ing an ultimate decision on LILCO's operating license application. To that end, Interve-nors can be expected to submit testimony that will duplicate testimony already presented and resolved in this lengthy proceeding.
Fourth, Intervenors argue that their interest will not be adequately represented by other parties. Motion at 10. LILCO does not agree on this point and notes that l
FEMA or the NRC Staff can readily monitor compliance with Guidance Memorandum MS-1.
.. Finally, Intervenors contend that their proposed contention will not broaden the 1-issues or the delay the proceeding. Motion at 10-11. Intervenors' claims are refuted by their past actions. One need only look at the two proceedings which are currently ongoing to see that Intervenors' claims are baseless. In the litigation involving the February 13 1986 exercise of the Shoreham Emergency Plsn, Intervenors have used the opportunity as a means of filing more new contentions than they filed in the original planning litigation. Many of those contentions seek implicity to reopen issues that In-tervenors have previously tried and lost. From the point of view of time, while the Li-censing Board was instructed to conduct an " expedited" proceeding, Long Island ,
Lighting Co. (Shoreham Nuclear Power Station, Unit 1). CLI-86-11,23 NRC 577 (1986),
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, more than one year has passed since the exercise; hearings are scheduled to begin on l
March 10,1987; and a decision on LILCO's performance during the February 13 exercise will not be forthcoming for many months.
In the other proceeding which is currently considering the single remand issue of the adequacy of reception centers designated in the Shoreham Emergency Plan, I%3r-venors have jointly offered 15 witnesses,11 of them designated only 21/2 weeks before l
9-the close of the discovery period. In addition, depositions of those witnesses have re-vealed that Intervenors will use the remand as a means of revisiting a variety of issues resolved in the earlier planning litigation, including the size of the so-called " shadow phenomenon" and at least indirectly the size of the Emergency Planning Zone. The schedule presently in place has hearings beginning 151/2 weeks af ter discovery was opened.EI Therefore, admission of Intervenors' proposed contention would broaden the -
, issues in this proceeding and would add at least another year before a decision would be made on LILCO's application for an operating license.
Thus, the five factors for a late-filed contention weigh against Intervenors, and their motion for admission of a new contention should be denied.
WHEREFORE, for the reasons stated above, LILCO respectfully requests that In-tervenors' motion to admit a new contention be denied.
Respectfully submitted, h IN Donald P. Irwin Lee B. Zeugin g g /
Hunton & Williams 707 East Main Street 4
P.O. Box 1535 Richmond, Virginia 23212 DATED: March 9,1987 t 1/ Discovery opened on January 14,1987; hearings are scheduled to being on May 4, 1987. At the outset of the remand proceeding, Intervenors proposed a schedule that would have provided a minimum of 19 weeks between the opening of discovery and the start of hearings.
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LILCO, Mrrch 9,1987 a, ,
00CMETED USNRC CERTIFICATE OF SERVICE 17 mR 11 P4 57 -
E In the Matter of QEibS Cibt' S LONG ISLAND LIGHTING COMPANY . BRANCH (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies - of LILCO'S OPPOSITION TO INTERVENORS' MOTION TO ADMIT A NEW CONTENTION were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.
Lando W. Zech, Jr., Chairman
- Alan S. Rosenthal, Esq., Chairman t U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W. Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Fif th Floor (North Tower)
Commissioner Thomas M. Roberts
- East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway 1717 H Street, N.W. Bethesda, MD 20814 ;
Washington, DC 20555 Gary J. Edles, Esq.
Commissioner James K. Asselstine
- Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20555 Fif th Floor (North Tower)
East-West Towers Commissioner Frederick M. Bernthal
- 4350 East-West Highway
- U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.
Washington, DC 20555 Dr. Howard A. Wilber Atomic Safety and Licensing Commissioner Kenneth M. Carr
- Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Fif th Floor (North Tower)
Washington, DC 20555 East-West Towers 4350 East-West Highway William C. Parler, Esq. Bethesda, MD 20814 t General Counsel U.S. Nuclear Regulatory Commission Mr. Frederick J. Shon 1717 H Street, N.W. Atomic Safety and Licensing Washington, DC 20555 Board U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 4350 East-West Hwy.
Bethesda, MD 20814 I
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> Morton B. Margulies, Chairman Fabian G. Palomino, Esq.
- Atomic Safety and Licensing Richard J. Zahnleuter, Esq.
Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber East-West Towers, Rm. 407 Room 229 4350 East-West Hwy. State Capitol Bethesda, MD 20814 Albany, New York 12224 Dr. Jerry R. Kline Mary Gundrum, Esq.
Atomic Safety and Licensing ' Assistant Attorney General Board 120 Broadway -
U.S. Nuclear Regulatory Commission Third Floor, Room 3-116 East-West Towers, Rm. 427 New York, New York 10271 4350 East-West Hwy.
Bethesda, MD 20814 Spence W. Perry, Esq.
- William R. Cumming, Esq.
Secretary of the Commission Federal Emergency Management
, Attention Docketing and Service Agency Section 500 C Street, S.W., Room 840 U.S. Nuclear Regulatory Commission Washington, DC 20472 1717 H Street, N.W.
Washington, DC 20555 Mr. Philip McIntire Federal Emergency Management Atomic Safety and Licensing Agency Appeal Board Panel 26 Federal Plaza U.S. Nuclear Regulatory Commission New York, New York 10278 Washington, DC 20555 Mr. Jay Dunkleberger Atomic Safety and Licensing New York State Energy Office Board Panel Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, DC 20555 Albany, New York 12223 Richard G. Bachmann, Esq.
- Stephen B. Latham, Esq.
- George E. Johnson, Esq. Twomey, Latham & Shea U.S. Nuclear Regulatory Commission 33 West Second Street i 7735 Old Georgetown Road P.O. Box 298 (to mailroom) Riverhead, New York 11901 l Bethesda, MD 20814 l
Jonathan D. Feinberg, Esq.
l Lawrence Coe Lanpher, Esq.
- New York State Department of Karla J. Letsche, Esq. Public Service, Staff Counsel Kirkpatrick & Lockhart Three Rockefeller Plaza South Lobby - 9th Flocr Albany, New York 12223 1 1800 M Street, N.W.
l Wasnington, DC 20036-5891 Ms. Nora Bredes Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 l
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Gerald C. Crotty, Esq. Dr. Monroe Schneider Counsel to the Governor North Shore Committee Executive Chamber P.O. Box 231 State Capitol Wading River, NY 11792 Albany, New York 12224 Martin Bradley Ashace, Esq.
- Eugene R. Kelly, Esq.
Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11787 k d
, Donald P. Irwin M h Lee B. Zeugin
[
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 9,1987